Pro police Ninth Circuit ruling shreds several clauses of Fourth and Fifth Amendments

The territory of the Ninth Circuit (Alaska, Arizona, California, Hawaii,
Idaho, Montana, Nevada, Oregon, Washington, Guam, Northern Mariana
Islands, and sometimes American Samoa) is now free of pesky clauses of
the Fourth and Fifth Amendments, the ones protecting against warrantless
searches and self incrimination.

Appeals Court Rules That Cops Can Physically Make You Unlock Your Phone
The 9th Circuit determined that forcibly mashing a suspect's thumb into
his phone to unlock it was akin to fingerprinting him at the police
station.
by Joe Lancaster
Reason
4.19.2024 12:50 PM
https://reason.com/2024/04/19/appeals-court-rules-that-cops-can-physically-make-you-unlock-your-phone/

Steve Lehto video if you don't want to read the article:
https://www.youtube.com/watch?v=quV4JSKnf9Y

Note that the appellee was a parolee, but nothing about this ruling
truly limits it to persons who are not in prison but still under
sentence like probation or parole.

The contents of a cell phone were searched without a warrant. Because
the phone's owner used a biometric to unlock -- thumbprint -- the court
ruled that the phone's owner had NO PRIVACY as obtaining the fingerprint
placed it in the same category as taking fingerprints at booking.

(The ruling also said it was akin to "drawing blood", even though there
is a 2016 Supreme Court ruling that warrantless blood tests of suspects
in North Dakota law are unconstitutional.)

California Highway Patrol pulled over a vehicle for a window tinting
violation. The driver admitted to being on parole. He was handcuffed.
They took his cell phone. While handcuffed, they forced him to provide
the thumbprint to unlock the phone.

Now, parole conditions he was subject to allow warrantless seizure of
electronic devices. However, unlocking the device was not a parole
condition.

They found a video in which they saw blue pills which they suspected
were fentanyl. I guess an experienced police officer might say the pills
looked like contraband but I have no idea how he can claim to know what
contraband it is from an image. On the phone was a map to an address,
which they suspected was a home address. (It doesn't say they confirmed
with parole records that this was the man's home.) Using his own keys,
they entered, searched, seized drugs. The man was charged with
possession with intent to distribute.

The man argued that forcibly obtaining the thumb print was a compelled
testimonial communication in violation of the self-incrimination clause
of the Fifth Amendment, and because it happened while in custody, the
privilege against self-incrimination is jeopardized and the Fourth
Amendment also provides self incrimination protection (from Miranda).

He lost.

Judge Tallman, who wrote the opinion, made a bizarre distinction of when
the right against self incrimination is PRESERVED under the Fourth and
Fifth Amendments:

Tallman does note the peculiar circumstances of the case: "Our
opinion should not be read to extend to all instances where a
biometric is used to unlock an electronic device." But, he adds,
"the outcome...may have been different had [the officer]
required Payne to independently select the finger that he placed
on the phone" instead of forcibly mashing Payne's thumb into it
himself.

Let's think about this. Because the police officer took control of the
bodypart, the person in custody lacks protections of the Fourth and
Fifth Amendments against self incrimination. But if the person is in
custody but the police officer doesn't use physical force in the
biometric unlock, just a verbal command, then the evidence would have
been suppressed.

What if a retina scan were the required biometric unlock? With a
completely uncooperative suspect trying to preserve his privacy because
he thinks the constitution still applies, could the police have cut
out an eye?